Judge: Apple's objections prove need for e-book antitrust monitor

updated 06:51 pm EST, Thu January 16, 2014

by MacNN Staff

Logic-defying ruling may inadvertently aid Apple's appeal

Following on from an initial ruling on Monday that ignored Apple's objections, US Federal Judge Denise Cote reinterated her denial of Apple's request for either suspension of a court-appointed antitrust monitor during appeal or at least the replacement of former DOJ Inspector General Michael Bromwich as the monitor in a 64-page ruling. "If anything, Apple's reaction to the existence of a monitorship underscores the wisdom of its imposition," she wrote.

The shockingly poor logic of that summary -- and her repeated refusal to consider appointing an alternative monitor who isn't a personal friend to the job -- may actually aid Apple's appeal of her decisions, which the company is expected to file for shortly. She gave the company until Tuesday to file an appeal of her decision to the Second Circuit US Court of Appeals. A lawyer for Apple said it would file such an appeal.

She further defended her choice of monitor against Apple's primary objection that he was expanding his duties far beyond his mandate by seeking interviews with Apple executives and requesting documents that had no connection to any antitrust issues or the e-book side of the business, disrupting the company's operations. "A monitorship would be of little use at all if a monitor were only permitted to receive, review and opine on company-vetted documents," she wrote. "Apple cites to no case holding that a monitor may never conduct interviews and there are many examples to the contrary," ignoring the fact that Apple did not object to interviews generally (and has supplied board members and lawyers for questioning by Bromwich), and that Cote's own original order laid down self-described "narrow guidelines" that Bromwich was supposed to follow.

She also sidestepped another factual allegation from Apple that Bromwich had violated the court's own order by attempting to interview subjects without their attorneys present. She did partially address the matter of Bromwich's excessive fee requirements, saying she saw nothing untoward about his $1100-per-hour costs, the extra "administrative fee" of 15 percent being paid to Bromwich's firm, and the $1025-an-hour salary for Bromwich's assistant, required because Bromwich is unqualified to be an antitrust monitor and requires an assistant with antitrust law experience.

Cote said, however, that she would assign the fee dispute to a different magistrate judge, and also noted that the DOJ and Bromwich had offered to adjust the fee previously, but that Apple hadn't yet responded (presumably because the company was hoping he would be replaced). Her pronouncement about Apple's reaction to the monitor could be interpreted as yet another pre-announcement of bias against Apple, given that she is still in charge of deciding some continuing matters left over from the original case -- another factor that could come into play in Apple's appeal.

A Justice Department spokeswoman said the government was pleased with Cote's decision.

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7 Comments

Someone needs to start a campaign to have her removed from the bench. I keep seeing the guy is a friend of hers who is getting paid way too much for his job. I still can't believe Apple lost the main case as all the facts I seen were for Apple.

When has it been unjust to object to unfair treatment. ? That's like saying it is unfair that business object to over-regulation and that their objection is exactly the reason they should be over regulated.

My own opinion: I can't comment on the conclusion reached in the bench trial, since I wasn't there. But reading her opinions on this monitor matter, it becomes VERY clear that she is intent on punishing Apple for daring to question her judgement, and on continuing to protest its innocence once she decided the case (which some would say she did long before the trial started). I predict very different conclusions when this case goes to appeal.

I would not be surprised if the judge received a pretty significant bitch slap from the higher courts. She has demonstrated shocking bias against a company that she pre-determined was guilty even when the facts did not necessarily support a guilty verdict. I think very little of what she has done before, during and after the trial will stand up under appeal.

I'm generally in favor of antitrust laws and the monitoring thereof should, of course, not be pleasant to the company being monitored--that's sort of the point.

But even if you ignore the fact that Amazon has a near-monopoly in Ebooks (and had an almost total monopoly prior to Apple getting into the game), or her publicly announced pre-judgement of the case prior to having heard the arguments as perfectly acceptable, I simply cannot get by the fact that she appointed an antitrust monitor who had to hire an antitrust monitor who got paid as much as he does in order to do his job. Because he didn't know how to be an antitrust monitor.

That just makes no sense whatsoever. Why didn't she just appoint the assistant that Bromwich hired to be the monitor in the first place? Isn't that lawyer, by definition, better qualified for the job than Bromwich? Why the middle-man? Something is not right when you appoint someone who does not know how to do the job he was appointed to do.

It's not Apple's reaction to a monitorship, it's Apples reaction to this specific monitor and the apparent all-inclusive scope of that monitoring.
The judge appears to lack the ability to perceive the difference.

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